Research/Scholarhip

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Limited liability companies (LLCs) are often viewed as some sort of a modified corporation.  This is wrong, as LLCs are unique entities (as are, for example, limited partnerships), but that has not stopped lawyers and courts, including this nation’s highest court, from conflating LLCs and corporations.  

About four and a half years ago, in a short Harvard Business Law Review Online article, I focused on this oddity, noting that many courts

seem to view LLCs as close cousins to corporations, and many even appear to view LLCs as subset or specialized types of corporations. A May 2011 search of Westlaw’s “ALLCASES” database provides 2,773 documents with the phrase “limited liability corporation,” yet most (if not all) such cases were actually referring to LLCs—limited liability companies. As such, it is not surprising that courts have often failed to treat LLCs as alternative entities unto themselves. It may be that some courts didn’t even appreciate that fact. (footnotes omitted).

I have been writing about this subject again recently, so I decided to revisit the question of just how many courts call LLCs “limited liability corporations” instead of “limited liability companies.”  I returned to Westlaw, though this time…

Babson College has posted their Global Entrepreneurship Monitor (“GEM”) Reports for 2014 (one global, one for the U.S.), available here.

The reports are valuable resources and should be read in full, but below are a few, selected quotes from the executive summary of the US GEM Report.

  • “The United States consistently exhibits among the highest entrepreneurship rates in the developed world. At 14% of the U.S. working age population, entrepreneurship levels edged upward in 2014 to reach the highest level in the 16 years GEM has assessed this activity. This represents approximately 24 million Americans starting or running new businesses. An additional 14 million people were estimated to be running established businesses.”
  • “36% of U.S. entrepreneurs operate in the business service sector, which is generally associated with knowledge and service-based businesses.”
  • “15% of entrepreneurs state that 25% or more of their customers come from outside the United States. This shows an increase over 11% reported in 2013, but it is still lower than 21% reported, on average, in the other innovation-driven economies.”
  • “29% of Americans personally know an entrepreneur; this measure has generally followed a downward path since 2001, when 43% indicated this affiliation.”
  • “Women’s entrepreneurship in the United

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A couple weeks ago, I wrote Ten Promises For New Law Students to Consider, which discussed the promises I made to myself when I went to law school.  It seems to me appropriate that I should follow up with something applies to me now.

This list for law professors (or at least, this law professor) includes some of the promises I made myself when I left practice, and some that have evolved over the almost decade I have been teaching.  It’s hard to believe this is my tenth year as a full-time teacher. 

To that end, here are my suggestions for faculty members, based on my experience. I don’t always keep these promises, but (as I did with the law school promises) I try.  This list is even less exhaustive than my last effort, and I welcome additions to the list in comments. I am not going to lie, this was a harder list to make, and it’s a challenge to fulfill them all (especially #6). 

I promise: 

(1) To be intentional.  That is, I will choose books, assign readings and exercises, and draft paper assignments and exams with a purpose.  They may not always be the best

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Andrew Vollmer, a law professor at the University of Virginia and a former SEC deputy general counsel, has written two excellent papers on SEC enforcement.

The first, SEC Revanchism and the Expansion of Primary Liability under Section 17(a) and Rule 10b-5, is a critical look at the SEC’s decision in the Flannery administrative proceeding. If you’re a securities lawyer and you’re not familiar with Flannery, you should be. It stakes out a number of broad interpretations of liability under Rule 10b-5 and section 17(a) of the Securities Act. I (and Professor Vollmer) believe some of those positions are inconsistent with Supreme Court precedent, but the SEC’s is clearly trying to set up an argument for judicial deference under Chevron.

Professor Vollmer’s second article is Four Ways to Improve SEC Enforcement. He discusses the problems with SEC administrative proceedings and how to fix them.

Both articles are definitely worth reading.

Hi, my name is Steve, and I’m an academic.

I’m paid to express my opinions. The more I publish, the  greater the rewards: tenure, promotion, raises, summer research grants, chaired professorships, conference invitations.

My situation isn’t unique. The reward structure is the same at most law schools and in the rest of higher education. The more you write, the more you get.

I once asked a dean (who shall remain nameless) what would happen if a faculty member received a summer research grant and the research didn’t pan out, didn’t produce anything worth publishing. The dean said that never happens because you can  find an outlet to publish almost anything.

But do we really need all that “scholarship”? Would the world be any worse if I and other academics spent more time thinking and crafting a few high-quality articles that really added to the discussion, instead of trying to keep up the stream of constant publication? Would law and legal education suffer if we cut the number of law review articles in half?

Incentives are part of the problem. I have been in law teaching for 29 years, and my sense is that the pressure to publish is increasing. Quantity…

It’s always nice to blog and research about a hot topic. Last week I wrote about compliance challenges for those who would like to rush down to do business in Cuba- the topic of this summer’s research. Yesterday, Corporate Counsel Magazine wrote about the FCPA issues; one of my concerns. Earlier this week, I attended a meeting with the Greater Miami Chamber of Commerce and the United States International Trade Commission. Apparently, on December 17th, the very same day that President Obama made his surprise announcement that he wanted to re-open relations with Cuba, Senator Ron Wyden coincidentally sent a request to the USITC asking for an investigation and report on trade with Cuba and an analysis of restrictions. Accordingly, the nonpartisan USITC has been traveling around the country speaking to lawyers and business professionals conducting fact-finding meetings, in order to prepare a report that will be issued to the public in September 2015. Tomorrow the Miami Finance Forum is holding an event titled the New Cuba Revolution.

This will be my third and final post on business and Cuba and in this post I will discuss the focus of my second potential law review article…

I just signed up for the SEALSB Annual Conference, which will be held in Atlanta, GA from November 12 through 14. I have attended and presented at the SEALSB Annual Conference each of the past two years. Both years we had a good group of professors.

The paper presentations are not limited by legal subject area, and the presentations in past years have covered issues in corporate governance, constitutional law, employment law, international law, sports and the law, franchise law, and other areas.

The conference is intended for “teachers and scholars in the fields of business law, legal environment, and law-related courses outside of professional law schools.” Most participants teach legal studies in business schools. I am told that those who interested in or exploring teaching legal studies outside of a law school are also welcome.

Conference registration information is available here. 

Last month, Ovul Sezer, Francesca Gino, and Michael I. Norton of  Harvard Business School posted Humblebragging: A Distinct – And Ineffective – Self-Presentation Strategy to SSRN (available here).  

Here is the full article abstract: 

Humblebragging – bragging masked by a complaint – is a distinct and, given the rise of social media, increasingly ubiquitous form of self-promotion. We show that although people often choose to humblebrag when motivated to make a good impression, it is an ineffective self-promotional strategy. Five studies offer both correlational and causal evidence that humblebragging has both global costs – reducing liking and perceived sincerity – and specific costs: it is even ineffective in signaling the specific trait that that a person wants to promote. Moreover, humblebragging is less effective than simply complaining, because complainers are at least seen as sincere. Despite people’s belief that combining bragging and complaining confers the benefits of both self-promotion strategies, humblebragging fails to pay off.

Although the authors accurately explain that humblebragging is “bragging masked by a complaint,”  I am partial to the Urban Dictionary definition:

Subtly letting others now about how fantastic your life is while undercutting it with a bit of self-effacing humor or “woe is me” gloss.

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